Flournoy v. State , 40 Ala. App. 629 ( 1957 )

On Rehearing

Appellant urges in brief on application for rehearing that we are in error in holding that it was permissible for Officer Ward to refer to the police report for the purpose of refreshing his memory. Counsel requests we “show there was nothing in the evidence showing how long it was after the alleged assault and investigation before the report or memorandum was made.”

It is further insisted that the evidence fails to show the witness was testifying from independent recollection after looking at the memorandum to refresh his memory.

In Penney v. Warren, 217 Ala. 120, 115 So. 16, 18, the court stated the rule as follows:

“A witness may refresh his memory by examining a memorandum made by himself, ‘or known and recognized by him as stating the facts truly,’ when, after such examination, he can testify to the facts as matter of independent recollection; but in such case the memorandum itself is not thereby made evidence in the cause, unless the opposing party calls for it. Acklen’s Ex’r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; Singleton v. Doe ex dem. Smith, 184 Ala. 199, 63 So. 949. * * Nor is it necessary that the memorandum should have been made contemporaneously with the transaction, if it was made while the facts were still fresh in the mind of the maker.”

The witness stated that the official report was prepared by himself pursuant to his duties in connection with his investigation of the alleged robbery. We think it can be inferred that the official report was made while the matter was still fresh in the mind of the officer.

No point was made on the trial and there is nothing in the record to show that the witness was testifying from the report and not from independent recollection after using the memorandum to refresh his memory.

Application overruled.

PER CURIAM.

Reversed and remanded on authority of Ala., 120 So.2d 124.